The Civil Partnership and Certain Rights of Cohabitants Act 2010 came into effect on the 1st January 2011. The Act has two separate sections which each deal with (1) Civil Partnership and (2) Cohabitants Rights independently of each other.
This section introduces a system for the registration of civil partnerships and intended to set out the rights and obligations arising from the registration of Civil Partnerships such as succession rights, pension rights, maintenance and shared home protection status. The Act also deals with what happens on the dissolution of a civil partnership and provides that orders may be made similar to those granted on Judicial Separation or Divorce.
This section of the Act creates a financial redress system for those qualifying as cohabitants. Cohabitants as defined by the Act can apply for compensation at the end of a relationship based on certain rights. These rights newly created by the Act are applicable to those qualifying provided that the cohabiting parties have not contracted out of them. There is no requirement for registration of the cohabitating couple’s relationship such as marriage or civil partnership. There is no automatic entitlement to these rights and it is only the court that can enforce them upon application by one of the cohabitating parties. In moving away from previous court judgments, Ennis v Butterly 1996 1 IR 426, there is now recognition under the Act for a Cohabitants’ Agreement. This agreement provides for financial matters during the course of the relationship or when the relationship comes to an end. The parties to the Cohabitants’ Agreement can either elect to accept of refuse the legal rights conferred upon them by the Act.
1. CIVIL PARTNERSHIP
For the purposes of the Act, a civil partner is either of two persons of the same sex who have entered into the legal registration of the civil partnership with each other. This registration of the civil partnership grants rights and duties on each of the civil partners similar to those of marriage including the duty to live together, to maintain each other and to benefit on death under the Succession Act 1965. The Act also treats civil partners similarly to spouses for the purpose of the Domestic Violence Act and the Pensions Act. On the dissolution of a civil partnership, either party to the partnership may apply to the court to be considered for orders similar to those available to spouses when pursuing Judicial Separation or Divorce. These include provision for maintenance, preservation or removal of succession rights, treatment under the pension acts and property adjustment orders.
Protections granted to civil partnerships in respect of the shared home are very similar to those granted to spouses under the Family Home Protection Act 1976. The Act prevents the sale of transfer of the shared home by one civil partner without the prior consent in writing of the other civil partner.
Where one civil partner to a partnership applies to court to be considered for maintenance under the Act, the court must decide whether if the other civil partner has failed to provide maintenance or the other partner that is proper in the circumstances. There is no provision for dependent children under the Act.
Civil partners are now treated in the same fashion as spouses under the Succession Act 1965. A civil partner is now entitled to a legal right share of one half of the estate of the deceased partner where there are no children and one third of the estate where there are children. On intestacy, the surviving civil partner is treated the same as the spouse save where on application by a child of either civil partner the court is of the opinion that it would be unjust not to provide for the child. As with marriage, civil partnership revokes a Will unless it was done in contemplation of civil partnership.
Civil partners may equally apply under the provisions of the Domestic Violence Act 1996 for Protection Orders, Safety Orders and Barring Orders.
A Decree of Nullity of the civil partnership may be granted by the Court on application by either civil partner and taking into account certain factors.
A Grant of Dissolution (similar to that of Divorce) may be granted to civil partners on application by one or both of them. The court must be satisfied that
(a) at the date of the institution of the proceedings, the civil partners have lived apart from one another for a period of, or periods amounting to, at least two years during the previous three years, and
(b) provision that the court considers proper having regard to the circumstances exists or will be made for the civil partners.
The section in the Act dealing with cohabitants sets out an entirely separate legal basis for two parties living together who have not formalised their relationship by either civil partnership or marriage. Pursuant to the implementation of the Act on 1st January 2011, cohabitants now have rights to include but not limited to make an application to the court to be considered for maintenance for themselves, rights under the Succession Act and rights to their cohabiting partner’s pension. Where previously property held jointly by cohabiting partners or where there were financial contributions to a property by either cohabiting partner, this was the only legal redress to cohabitants in respect of the shared home and this was dealt with by way of partition proceedings. The new Act opens up new areas of redress for those qualifying cohabitants.
A Cohabitant is defined under S.173 of the Act as “one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not related to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.”
The Act sets out certain parameters by which a cohabiting relationship may be assessed. A qualifying cohabitant is defined in the Act as someone who has cohabited with another adult for a period of five years. Where there is a dependent child of the cohabiting relationship, the qualifying period is reduced to two years. These qualifying periods are limited to those freely able to enter into a marriage or civil partnership or, where one of the cohabiting parties is married, where that partner has lived separate and apart from his or her spouse for a period of four out of the last five years.
Those qualifying under the Act may seek financial redress from the court on either the death of a cohabiting partner or at the end of the cohabiting relationship. In order to succeed on application under the redress scheme, the qualified cohabitant must also satisfy the court that they are financially dependent on the other cohabitant and that this dependence arises from the relationship or arises on the termination of the relationship. Any decision by the court will take into account whether or not any order made in favour of the qualified dependent would affect the right of any person to whom the other cohabitant is or was married. The court will also have cognisance of the following:
(a) the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future,
(b) subject to subsection (5), the rights and entitlements of any spouse or former spouse,
(c) the rights and entitlements of any civil partner or former civil partner,
(d) the rights and entitlements of any dependent child or of any child of a previous relationship of either cohabitant,
(e) the duration of the parties’ relationship, the basis on which the parties entered into the relationship and the degree of commitment of the parties to one another,
(f) the contributions that each of the cohabitants made or is likely to make in the foreseeable future to the welfare of the cohabitants or either of them including any contribution made by each of them to the income, earning capacity or property and financial resources of the other,
(g) any contributions made by either of them in looking after the home,
(h) the effect on the earning capacity of each of the cohabitants of the responsibilities assumed by each of them during the period they lived together as a couple and the degree to which the future earning capacity of a qualified cohabitant is impaired by reason of that qualified cohabitant having relinquished or foregone the opportunity of remunerative activity in order to look after the home,
(i) any physical or mental disability of the qualified cohabitant, and
(j) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.
A qualifying cohabitant can only seek redress under the Act two years from the end of the relationship whether by death or otherwise.
A cohabitants’ agreement is valid only if—
(a) the cohabitants—
(i) have each received independent legal advice before entering into it, or
(ii) have received legal advice together and have waived in writing the right to independent legal advice,
(b) the agreement is in writing and signed by both cohabitants, and
(c) the general law of contract is complied with.
The court may vary or set aside a cohabitants’ agreement in exceptional circumstances, where its enforceability would cause serious injustice.